New Jersey Criminal Lawyer Blog

Charges of a drug-fueled rape of a potential client do not do much to help the legal profession. Mr. Al Garcia's rape trial began with his accuser's testimony that when she appeared for a consultation for his legal services one evening, she was instead offered cocaine, raped and forced to perform sexual acts. While three others have come forward to testify that Mr. Garcia attempted to trade legal services for sex, the defense has offered evidence that shows no signs of force or injury in the medical report taken after the alleged attack.

While this story leaps of the page due to the "shock value" the case may still be a difficult for prosecutor's to prove based on the facts that have been publicized. This case ultimately comes down to the credibility of both the victim and the attorney. This is because the attorney's defense is not a denial that sexual acts occurred, but rather that the sexual acts were consensual. The fact that Judge is allowing three witnesses to testify appears to undermine the defense. Witness testimony like this can backfire, though, because the defense may argue that the victim in this case was accepting the attorney's offer. However, the fact that the attorney was allegedly using narcotics really damages the attorney's image for the jury. The jury is going to have to weigh the evidence, and the drug use may be a factor is convincing a jury that the attorney did sexually assault the victim and that there was no consent. An experienced attorney can determine the strongest defense against these types of charges, with extremely sensitive and nebulous circumstances, based upon the specific facts of each individual case.

In addition to the State trial, Garcia has been convicted in Federal Court as well for distribution of cocaine and methamphetamine, though the State jury will not know this, at least until the trial is over. Regardless of the outcome of the state trial, Garcia faces attorney discipline including potential disbarment. His law license has already been suspended, and he will probably be looking for a new line of work. The only question is whether he'll have a stopover in the state prison.

Part II Exceptions to the Warrant Requirement:
A basic principle of Fourth Amendment law is that "searches and seizure inside a home without a warrant are presumptively unreasonable." Payton v. New York, 445 U.S. 573, 5861980). The State bears the burden of proving that a warrantless search falls within one of the few, narrowly circumscribed exceptions to the warrant requirement. State v. Patino, 83 N.J. 1, 7 (1980). Of course, if police have entered your home without permission without a warrant resulting in criminal charges, you should contact an attorney immediately.

One such exception is the "protective sweep." In Maryland v. Buie, 494 U.S. 325 (1990), the Unites States Supreme Court determined the circumstances under which the police may perform a warrantless protective sweep of a defendant's premises incident to an arrest in order to ascertain the presence of any dangerous third parties. The Court held that the Fourth Amendment permits a properly limited protective sweep in conjunction with an in-home arrest when the searching officer possesses a reasonable belief based on specific and articulable facts that the area to be swept harbors an individual posing a danger to those on the arrest scene. Id. at 327, 334, 337. Such a protective sweep is not a full search of the premises, but may extend only to a cursory inspection of those spaces where a person may be found. Id. at 335. The sweep is to last no longer than is necessary to dispel the reasonable suspicion of danger and in any event no longer than it takes to complete the arrest and depart the premises. Id. at 336. Thus an officer's search for contraband or other evidence incident to an arrest does not constitute a protective sweep, and therefore cannot be based upon merely a reasonable suspicion.

New Jersey also has addressed protective sweeps. In State v. Henry, 133 N.J. 104, 118 (1993), the Court held that upon arresting an individual, "[t]he police may also 'fan out' and conduct a protective sweep of the area if they have reason to believe that they may be in danger from other parties on the premises." In State v. Doyle, 42 N.J. 334 (1964), the New Jersey Supreme Court found that the key to the propriety of a search is when the defendant was arrested. Police may not search in order to arrest, and a search to uncover evidence upon which to arrest is not made lawful because the desired evidence is obtained. Id. at 342. Absent a valid search warrant, the police must actually perform a valid arrest at same time that they performed the search that police justify as incident to an arrest. Id. at 342-43.

It is important to note that the scope of the sweep is a crucial factor. In Chimel v. California, 395 U.S. 752 (1969), the Court held that in the absence of a search warrant, the justifiable search incident to an in-home arrest could not extend beyond the arrestee's person and the area from within which he might have obtained a weapon. A search of a person or things within his immediate control or of the place of arrest to the extent that it is within his immediate possession or control is considered incidental to the arrest. Doyle, supra, 42 N.J. at 344. If police fish around beyond the area where a person might be able to reach, for example, evidence they find is not permissible in Court. Police then arguably must be able to convince the court that the evidence of danger was in reach. The experience of a police search and seizure at the home can be overwhelming, which is why these facts are best examined by a skilled attorney in order to determine the best defense strategy.

A defendant who pleaded guilty to assault, and charged with drunken driving, drug possession among other things, fled his home state recently. But according to a report, he virtually turned himself in using Facebook. He was living in a nearby state since the fall, and has been wanted by police for failure to appear at his sentencing. Perhaps he didn't realize that police use the Internet too. The tech-savvy police posted a thank-you note too, for the defendant's diligent status posts, which led them to his whereabouts.

Chris Terry was charged with a DUI, a class A felony dealing cocaine, a class C felony drug possession, resisting arrest, possession of a handgun without a permit and driving with a suspended license, in Clarksville, Indiana. Another man and woman were also in the car, in the man's pocket was $1,200.00 and near him was a large amount of cocaine. They were arrested for similar charges, including public intoxication. The arrest was made at a traffic stop early Wednesday morning when a police officer witnessed him driving erratically. Under Terry's his seat was a loaded handgun and in the cup holder next to him was some cocaine. Add to these elements that Terry is 6'5" and 295 pounds and that he allegedly refused to follow police instruction, this could certainly present a very dangerous set of circumstances. Terry is currently being held without bond.

Charges of DUI, drug possession, dealing, possession of a loaded weapon without a permit, resisting arrest and public intoxication carry serious penalties in every state, including New Jersey. This is quite a fall from Terry's football days. He attended the University of Georgia, and played for the Carolina Panthers, the Seattle Seahawks, and most recently, the Kansas City Chiefs in 2006 and 2007. It was reported that the Chiefs cut him for being absent from team meetings in 2007. The NFL suspended him from the 2008 season for substance abuse, after already having been suspended in 2003 drugs and a domestic dispute. Domestic violence and drugs are a common pair, and they should be taken very seriously.

In New Jersey, cocaine is considered a "Controlled Dangerous Substance," or CDS. As one example, this felony possession charge could lead to up to 5 years in jail and remain on your record permanently. If it is your first offense, you could be eligible for the Pretrial Intervention program, which can lead to a dismissal of charges after 1 year. One way to defend against charges of this nature is to question the method of the police search and seizure, or how the cocaine was discovered. The specific facts of the arrest are crucial in determining the best legal course of action.

If you have been involved in domestic violence, or charged with DUI, drug possession charges, weapons charges, or any of these crimes, it is crucial that you call an attorney immediately. Experienced attorneys can be reached at Chamlin, Rosen, Uliano and Witherington.

Marijuana Laws Could Change in New Jersey

On Monday, the chronically or terminally ill in New Jersey came a step closer to finding relief in cannabis, legally anyway, with medical marijuana. Outgoing Governor Corzine stated that he would sign the bill approved by the legislature before he left office. Soon-to-be Governor Christie has given his support to the bill publicly, though he had a concern for loopholes that may be exploited for the purposes of drug abuse. The federal government, according to what Attorney General Eric Holder has been reported as stating, would not prosecute those who are abiding by medical marijuana laws of the state.

The requirements for New Jersey's version of the medical marijuana law is strict, including that patients have chronic pain, wasting syndrome, or 12 months or less to live if a physician determines that the illness is terminal. In addition, only specific illnesses or debilitating medical conditions qualify, including AIDS, multiple sclerosis and certain kinds of cancer. Patients with the selected diseases would be given an identification card permitting them to obtain 2 ounces of marijuana each month from dispensaries sanctioned by the state.

Marijuana legalization on the whole is no closer to reality, however. The current marijuana laws, presumably, would remain in place. While the lowest marijuana law is a disorderly persons offense, possession of less than 50 grams or merely being under the influence of marijuana is punishable by up to 6 months jail time and a $1,000.00 fine. If you are found to have more than 50 grams, that increases to 18 months and a $25,000.00 fine. Possession of paraphernalia alone can get you 6 months and $1,000.00. Distribution of less than one ounce can put you in jail for 18 months as well, and paying a $10,000.00 fine, while more than one ounce increases the jail time to 3 to 5 years and a $25,000.00 fine. If distribution within 1000 feet of a school bus or school property, or near public housing, public park or public building, or sale to a minor or pregnant woman is proven, these factors will significantly increase penalties and make some incarceration and fines mandatory.

Make no mistake: For the foreseeable future, marijuana is far from being legalized, outside of a narrow medical purpose. Be sure to know your rights.

If you have been arrested for any drug related offense, or have questions regarding this area of the law, call Chamlin, Rosen, Uliano & Witherington for a consultation right away.

Tiger is lucky. Another professional athlete's domestic dispute has led to another motor vehicle accident, but the result is far more tragic than loss of sponsorships. Cincinnati Bengals wide receiver Chris Henry died today from injuries sustained by falling from a pick up truck, allegedly driven by his fiancée and mother of two of his children. Police will not say whether he fell out or was forced out of the vehicle, but homicide detectives have been assigned to the case and fiancée Loleini Tonga was driving the vehicle.

At age 26, Henry had a history of arrests, including gun, marijuana possession, and assault charges. The Bengals gave him a break after a rough career at West Virginia under then Coach Rich Rodriguez. At his worst, he was called "an embarrassment to himself and the program," and "a one-man crime wave." He had been suspended by the NFL three times, released and then resigned for another chance to "regroup, catch himself, and re-start his life." Recently, despite being plagued by injuries including a dislocated forearm, he was turning things around. Those around him were both proud and hopeful, saying that "When you see him up close, you'll find that you'll like him," that he "has done everything he can to make himself a better person" and is "a great kid with a great heart."

One doesn't have to dig deep to find a cautionary tale for college athletes, for those embroiled in domestic disputes (Steve McNair's death is also tied to trouble with a mistress girlfriend), for those involved with drugs on any level, and even for dangerous driving (how often do people get behind the wheel when they are upset or following a heated argument).

The legal penalties for all of this behavior quickly pile up, and can have a seriously negative impact on your life, whether you are an athlete or not. Costly fines, loss of drivers license, jail time and mandated community service and treatment programs are all possibilities, depending upon you are caught on a first, second or third offense, or the particular circumstances surrounding the incident. It is too bad that successful athletes who make the most of the opportunities that come their way, and who manage to make good choices do not make the headlines.

Police found weapons, cash, and drugs in the Asbury Park home of a local dentist.  Dr. Raymond Pacholec had more than 40 marijuana plants, two pounds of cultivated marijuana, $10,000 cash, handguns and rifles located in his home.  He choose to protect these items with a burglar alarm.  Unfortunately for him, the alarm was somehow tripped and no one was home to answer the phone calls.  Thus, local police went to the residence to check for signs of a break-in.  While there the police detected a strong odor of marijuana, they searched the premises to discover the other contraband.

New Jersey Criminal Lawyer Blog's Take: One might be asking how the police were able to get into house with no one home.  The answer is probable cause.  The police were able to obtain probable cause that illegal activity might be found within the home when they detected the strong odor of marijuana.  Dr. Pacolec's defense attorney will surely make a motion to have the search invalidated, but it will be a tough motion to prevail.  It is true that the 4th Amendment protects us from unlawful search and seizures, but there are many exceptions.  If a person can smell marijuana, or even look into a window and see contraband, either event gives rise to probable cause.

Dentist charged with marijuana in home (March 17, 2009 - Asbury Park Press)